Who Has the Power of War?

David Swanson is the author of the new book “Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union” by Seven Stories Press, an immediate bestseller at Amazon.com http://tr.im/xBt3 This article is adapted from “Daybreak.”

Since 1973 presidents who have launched wars without the authorization of Congress have done so, not just in violation of the Constitution, but also in violation of the War Powers Act, a law written in reaction to President Richard Nixon’s abuses of power and passed over his veto. The law allows a president to send armed forces into action abroad only with the authorization of Congress, unless the United States is actually under attack or serious threat. The president is required to notify Congress within 48 hours if he commits armed forces to action abroad, and forces cannot be kept in action for more than sixty days without an authorization from Congress. This law is actually weaker than the constitutional requirement and should be strengthened, but it is a law that Bush (and Congress) violated.

One way in which Bush Jr. outdid his predecessors in martial criminality was by persuading Congress to issue a vague and general authorization to “use force” at any point in the future when the president believed certain conditions had been met. By so doing the Congress, as well as the president, violated the Constitution and the War Powers Act. The Iraq War was not launched with any specific and timely authorization from Congress. That is the first of many reasons the war is widely considered illegal. Congress’s authorization allowing the president to determine whether to go to war was an unconstitutional delegation of the power to declare war. My friend John Bonifaz led a legal suit on behalf of soldiers and members of Congress aimed at preventing the war on those grounds, and the courts avoided it rather than ruling on the merits.

In defense of Congress, its resolution did require that if the president decided to use force he must submit a report to Congress explaining how this use of force met certain criteria. The explanation Bush gave made false claims about “weapons of mass destruction” and ties to al-Qaeda.

The fact that Bush used Congress’s “Authorization to Use Force” without actually complying with its terms is a second reason the Iraq War is illegal. In addition, Bush signed had that authorization and asserted in the accompanying signing statement that he did not actually need any authorization at all.

The claims that Bush made in his report to Congress, as well as a long list of claims that he and his subordinates made publicly and directly to Congress, orally and in writing, established a false case for war.

Bush, Cheney, Rice, Rumsfeld, et alia, violated the federal anti-conspiracy statute, which makes it a felony “to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose,” and the False Statements Accountability Act, which makes it a felony to issue knowingly and willfully false statements to Congress. That the Iraq War was based on lies is a third reason that it is widely deemed illegal.

Bush unsuccessfully sought a resolution from the United Nations to make his war on Iraq legal under international law. The single biggest day of protest in the history of the world, including a massive demonstration in New York City, on February 15, 2003, played a role in persuading the United Nations to refuse to authorize the invasion. Under Article VI of the US Constitution, any treaty to which the United States is a party is the law of the land. The United States is a party to the United Nations Charter. Under the UN Charter, any war not fought in actual self-defense or authorized by the UN Security Council is illegal. That the Iraq War is blatantly illegal under the UN Charter is a fourth reason that it is considered an illegal war.

It is also illegal, under international treaties to which the United States is party, to invade another nation for the purpose of controlling its resources. That the Iraq War had this basis is a fifth powerful reason that it is considered an illegal war.

The current occupation of Iraq has seen the United States target civilians, journalists, hospitals, and ambulances; use antipersonnel weapons including cluster bombs in densely settled urban areas; use white phosphorous as a weapon; use depleted uranium weapons; employ a new version of napalm found in Mark 77 firebombs; engage in collective punishment of Iraqi civilian populations (including by blocking roads, cutting electricity and water, destroying fuel stations, planting bombs in farm fields, demolishing houses, and plowing down orchards); detain people without charge or legal process without the rights of prisoners of war; imprison children; torture; and murder. The various war crimes are a sixth reason that the Iraq War is considered illegal.

The seventh reason to view the Iraq War, along with the “global war on terror” of which it is supposedly a part, as illegal is the endless plague of crimes and abuses of power that surround the war and are supposedly justified by it. The criminal waste and fraud in contracting is part of this. The planning of the war has gone on in illegal secrecy.

The lies used to launch the war involved the illegal selective leaking of classified information; and whistleblowers exposing those lies have been illegally punished, including by exposing the identity of an undercover agent. Investigations of those abuses have been criminally obstructed. Mercenaries and other contractors in Iraq have been permitted to operate in a lawless zone, subject neither to Iraqi law nor to US military justice. People, including children, in Iraq, Afghanistan, and around the world, including in the United States, have been detained without charge or due process, tortured, rendered to other nations to be tortured, imprisoned in secret prisons with no access to legal counsel, and murdered. Bush and Cheney threatened a similar war against Iran, made similar lies about Iran, and funded terrorist activities within Iran. Bush violated the Posse Comitatus Act at home, as well as engaging in warrantless spying and various illegal assertions of power. Bush and Cheney used the war to try to justify all of the above actions.

An eighth reason the ongoing occupation of Iraq is illegal is that, while the United Nations did not and could not have legalized the invasion, it did, after the fact, condone the occupation until December 31, 2008. When that UN fig leaf expired it was replaced with a treaty negotiated by President Bush and Iraqi President Nouri al-Maliki. The US Senate was never consulted, and the Iraqi Parliament only approved the treaty on condition that the Iraqi people be permitted to vote it up or down sometime before the end of July 2009 (and that vote has not happened). A treaty authorizing three years of war has dubious legal standing to begin with, and this is aggravated by the unconstitutional failure to gain Senate ratification.

We are now a nation that regularly bombs civilians, detains the innocent, and tortures suspects — sometimes to death. Opinion of the United States around the world has plummeted to the point where we are seen as the most dangerous “rogue state.” And this began with Afghanistan, where we have killed and destroyed in great measure, but done very little to either apprehend the criminals we were supposedly there to find, or to benefit the innocent people whose country we have made a more dangerous, more impoverished place to live.

The wars we are fighting are not wars of defense or even wars between two militaries. They are wars of a powerful military against the guerilla resistance of occupied populations. No one “wins” these wars any more than you can “win” a hurricane. They are unmitigated disasters, and our own intelligence services tell us our occupations have become recruiting tools for terrorists. International terrorist incidents increased in 2004, and then the US government ceased reporting the statistic.

The Constitution very clearly puts the president in charge of the military, a fact that found its way through the brain of George W. Bush and exited his mouth as “I’m the commander guy.” And yet, this does not put the president in charge of launching war, or in charge of rules for prisoners of war, or in charge of funding and creating the military, or of making rules to govern and regulate the military, because the Constitution gives those powers to Congress, along with the power to raise and support armies as needed for wars. The Constitution bans the appropriation of any money for that use for longer than two years. This means that during a lengthy war Congress must decide again at least every two years to keep fighting it, and therefore the “commander guy” does not have the power to begin or end wars, but only the power to serve as the commander of the military determining how a war is fought.

Any war by the United States is illegal if Congress has not declared war or if Congress has declared a war over. This was the clear intention of the authors of the Constitution. Unconstitutional wars have become the norm by now, with Democrats launching at least as many as Republicans.

Nonetheless, George W. Bush managed in this area, as in many, to outdo his predecessors. For one thing, he repeatedly declared in signing statements that Congress cannot in any way regulate the military. Never mind that the Constitution says precisely the opposite, that Congress and only Congress has the power “to make Rules for the Government and Regulation of the land and naval Forces.” This power is also being stripped away by the increased use of mercenaries not properly regulated by Congress.

Three proposals have been floated recently related to the War Powers Act, one of them awful, the other two commendable. The first comes from a bipartisan commission of elder statesmen including Ed Meese, Warren Christopher, James Baker, and Lee Hamilton. The proposal that came out of this latest commission in July 2008 was, predictably, to repeal the War Powers Act and replace it with an act requiring that the president “consult” with Congress prior to launching a war. This role of consultant is exactly the role current congressional leaders want, a role once played with more grace by court jesters. But it is a recipe for legislating in place the aggrandizement of the executive against which James Madison warned.

The second proposal seeks instead to remedy this problem. It comes from Larry Sabato’s 2007 book “A More Perfect Constitution.” Sabato recommends a constitutional amendment that would add to the War Powers Act the requirement that congressional authorizations of war include time limits, after which Congress must vote again to extend the war or end it. While I agree time limits would be ideal, I think the same solution should be pursued first through legislation. I would add that those time limits should be no longer than twelve months.

The third proposal comes from a white paper published by the Center for Constitutional Rights (CCR) in April 2009 called “Restore. Protect.
Expand. Amend the War Powers Resolution.” Because it is so difficult to end wars once begun, CCR proposed eliminating the permission that the War Powers Act currently and unconstitutionally grants for a president to wage war for sixty to ninety days before gaining congressional approval, arguing that the only exception should be for the short-term use of force to repel (not retaliate for) sudden attacks on US territories, troops, or citizens. (The inclusion of troops or citizens here seems to weaken the reform and provide an easy way to provoke or pretend an excuse for war, so I would limit it to territories.)

CCR also proposes adding an adequate enforcement mechanism to deal with occasions on which presidents violate the law. A new law would prohibit the use of funds for actions violating the law, allow for judicial oversight in cases of conflict between Congress and the president, and explicitly make a violation of this law an impeachable offense.

Of course, when Congress does authorize military action, it must be in accordance with the UN Charter and international law, and it must not be treated as the supposed authorization to engage in abuses of power and violations of rights. We also need a reform, perhaps called “The Cheney-Halliburton Act,” that would make war profiteering by any war-maker a major felony. This would apply to employees of the federal government or anyone who had within the past decade been an employee of the federal government, especially the President and Vice President themselves.

I’m very much in favor of another reform that might truly prevent aggressive wars. When soldiers are sent into war, they and their friends and family do not play any significant role in the war-making decision. Yet their lives are put at risk on the basis of claims made by people themselves taking no risk at all, claims of a sort that have through the course of history proven almost universally false. The United States is not supposed to have a lower class that suffers and dies and an upper class that decides when others should suffer and die. There is a simple way around this. We should require that, in any war, the military-aged children and grandchildren of the president, the vice president, all cabinet officials, and all Congress members serve on the front lines in the most dangerous combat positions. Oh, how cruel and awful! But how much more cruel and awful to send other families’ children to die. War is our biggest business and grandest undertaking. Why should our government itself not be involved?

An updated US Constitution might state that:

–No more than 25 percent of discretionary US government spending in any given year can be devoted to military expenses of any sort, including wars, including debt and interest payments for past military expenses and wars, and including care for veterans.

–All military veterans must be provided with free comprehensive health care and education.

–The United States is forbidden to maintain a military presence in any foreign nation, to engage in any war of aggression, to employ mercenaries, or to make use of military force on American soil except when actually engaged in a defensive war against a foreign nation.

–The executive cannot begin a war without authorization and funding from Congress, and Congress cannot provide those for longer than one year at a time.

–A congressional vote to end a war is not subject to presidential veto.

–During war, the children and grandchildren of the president, vice president, all cabinet officers, and every member of Congress, who are of military age, must serve in the most dangerous combat positions.

–A president, vice president, or member of Congress who profits financially from any war and is convicted of doing so in a court of law shall be imprisoned for a minimum of ten years, and there shall be no statute of limitations on this crime.

David Swanson, a member of the Project Board of Voters For Peace, is the author of the new book “Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union” by Seven Stories Press, an immediate bestseller at Amazon.com http://tr.im/xBt3 This article is adapted from “Daybreak.”